Judge blasts plaintiff’s attorney for ‘dumb’ violation of his ruling

SAN FRANCISCO -- The federal judge overseeing hundreds of cases arguing Monsanto's weedkillers cause cancer wasted no time reining in an attorney who tried to sneak inadmissible evidence into opening statements Monday.

After months of evidentiary hearings in which he established the first phase of the trial would only consider causation, U.S. District Judge Vince Chhabria said he is inclined to sanction a plaintiff's attorney, and possibly the rest of her team, for inappropriately discussing alleged misconduct by the company concerning efforts to influence findings by the Environmental Protection Agency.

"To start quoting a bunch of EPA documents when it was clear that it probably won't be admissible, I mean in addition to being intentionally violative of my ruling ... it's incredibly dumb," he said about Aimee H. Wagstaff's opening statement after the jury was excused.

The Andrus Wagstaff founding partner's assertions may have opened the door to presenting the jury with all of the EPA's studies, according to Chhabria, who previously ruled they should be excluded.

"There's an issue of misconduct but also an issue of, 'Are plaintiffs so intent on committing misconduct that they're not realizing that they're opening the door to bad evidence against them," Chharbia said. "I think they may have opened the door to later EPA documents. That's a real possibility."

Chhabria said the disregard for his evidentiary instructions were "not only reflected in what [Wagstaff] said but the slides in what her team prepared." She has until Monday night to respond as to why she should not be sanctioned for $1,000.

Edwin Hardeman's allegations will be the first of three test cases in the consolidated litigation. He is contending exposure to the company's signature weedkiller, Roundup, was a substantial contributing factor in his development of Non-Hodgkin lymphoma, which he was diagnosed with in 2015 after decades of exposure.

Since the trial is split up into two phases, the jury will only hear accusations of misconduct and whether additional damages are warranted if it finds the company, now owned by Bayer AG, liable for causing Hardeman's cancer. The decision to bifurcate the trial pleased defense attorneys.

Each side has 32 total hours in the trial, which is expected to last up to five weeks. In re: Roundup Products Liability Litigation, 16-MD02741 (N.D. Cal., filed Oct. 4, 2016).

Defense attorney Brian L. Stekloff of Wilkinson, Walsh & Eskovitz argued Wagstaff should be precluded from using slides for the remainder of her opening statements. He said plaintiff's attorneys intentionally misled the court so "no issues could be raised ahead of time" because both sides had to submit exhibits in advance.

The defense was particularly upset by references to a 1983 mouse study, which found tumors in mice with increasing levels of exposure to glyphosate. Wagstaff argued Monsanto chose not to redo the study, in spite of the prompting by one of its own employees, when requested by the EPA because it would most likely produce unfavorable findings.

The remainder of Wagstaff's opening remarks continued without an interruption from Chhabria. She wrapped up by pre-empting the defense's argument that Hardeman's cancer could have been caused by other risk factors, such as his Hepatitis B, C and a high body mass index, by arguing their experts and physicians considered and ruled them out.

Stekloff opened with what he said were "areas of this case which are not in dispute," namely that Non-Hodgkin lymphoma is a common cancer with nearly 75,000 new diagnoses annually.

"The cause of Non-Hodgkin lymphoma, when [patients] go to doctors and hospitals around the country, is unknown," he said. "Doctors cannot tell them what caused their cancer."

After criticizing plaintiff's studies for not having a large enough sample size and not adjusting for other pesticides, Stekloff defended the Agricultural Health Study, which followed almost 45,000 people who used glyphosate-based products for decades and found no association between exposure and cancer.

The study is Monsanto's most compelling scientific evidence and a formidable hurdle for plaintiff's attorneys to clear, according to legal experts.

Stekloff said an adviser on the National Institute of Health's study is slated to testify for plaintiff's attorneys.

Chhabria also excused a juror for economic hardship after testimony by plaintiff's expert epidemiologist, Beate Ritz. The UCLA professor is scheduled to continue testimony Tuesday.